ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160015203 APPLICANT REQUESTS: Reconsideration of his earlier request for ? upgrade of his dishonorable discharge ? to expunge his court-martial conviction ? personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: ? DD Form 149 (Application for Correction of Military Record) ? Self-authored statement ? DD Form 214 (Certificate of Release or Discharge From Active Duty) ? Four character statements ? Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) ? ABCMR ROP decision FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130020733 on 15 July 2014. 2. The applicant states he wants his records to be expunged, records wiped clean, and receive full honorable discharge. He was attacked by two individuals for no reason. He acted in self-defense against two individuals and fought them off. He stood his ground using hand to hand defense. He spent 6 3/4 years in jail at the U.S. Disciplinary Barracks. He is a 50 year old Army Veteran that joined the military in September of 1981. The applicant provides a detailed self-authored statement which describes the incident and his military and personal experiences (detailed letter enclosed in packet) 3. The applicant provides: 1. a. DD Form 214, indicates he enlisted into the Regular Army (RA) on 25 September 1981 in which he served honorably until 17 September 1990 and was discharged dishonorably on 24 June 1994. b. Character statement from SM, dated 22 January 2014 (detailed letter enclosed in packet). c. Notarized character statement from RN, dated 22 January 2014 (detailed letter enclosed in packet). d. Character statement from SG, dated 23 January 2014 (detailed letter enclosed in packet). e. Notarized character statement from DM, notarized 13 August 2016 (detailed letter enclosed in packet). f. ABCMR ROP, dated 15 July 2014. g. ABCMR ROP decision, dated 18 July 2014. 4. The applicant’s records shows: a. He enlisted in the Regular Army on 25 September 1981 and he held military occupational specialty 12B (Combat Engineer). b. He served in Korea from 13 July 1983 to 13 July 1984 and in Panama from 2 January 1986 to 27 October 1989. c. His records show he was promoted to sergeant (SGT)/E-5 on 22 June 1984, reduced to specialist/E-4 on 24 July 1987, and again promoted to SGT/E-5 on 1 September 1989. d. He was last assigned to Fort Hood, TX on 27 December 1989. e. On 18 September 1990, he departed his unit in an absent without leave status. f. On 27 September 1990, he was confined by civil authorities at the Bell County Jail, Belton, TX. g. He was released from civil confinement on 12 October 1990 at 1530 hours and he was subsequently placed in pre-trial military confinement at Fort Hood, TX, at 1645 hours. h. On 15 January 1991 , he was arraigned at a general court-martial at Fort Hood, TX, on the following offenses: a. ? Charge I, specification 1 - attempted murder (plea - not guilty, finding - guilty) ? Charge II, specification 1 - absenting himself from his unit from 18 September to 22 September 1990 (plea - guilty, finding - guilty) ? Charge Ill, specification 1 - unlawfully striking another individual (plea - not guilty, finding - not guilty) ? Charge Ill, specification 2 - assault (plea - not guilty, finding - guilty) i. The court sentenced him to dishonorable discharge, confinement for 10 years, forfeiture of all pay and allowances, and reduction to private/E-1. j. On 19 June 1991, the sentence was approved and, except for the part of the sentence extending to a dishonorable discharge. k. On 6 August 1992, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence he was credited with 158 days of administrative credit towards his sentence to confinement. l. On 24 March 1994, the U.S. Army Court of Military Appeals ordered that the decision of the U.S. Army Court of Military Review be reversed to the extent that it denied him 14 days of additional pre-trial confinement credit and an additional 55 days of credit, for a total of 227 days of pretrial confinement credit in all other respects, the decision was affirmed. m. Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court- Martial Order Number 150, dated 25 May 1994, shows the convening authority ordered the applicant's dishonorable discharge sentence executed after completion of all required post-trial and appellate reviews. n. On 24 June 1994, the applicant was discharged from the Army. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial with a dishonorable discharge. o. His DD Form 214 further shows he completed a total of 8 years, 11 months, and 23 days (including excess leave) of creditable military service he was awarded or authorized the Army Good Conduct Medal (3rd Award), Army Achievement Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Service Ribbon, and Overseas Service Ribbon. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the 1. court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 6. By Army Regulation 635-200 Personnel Separation – Enlisted Personnel, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 7. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the severity of the misconduct and a lack of evidence from the applicant showing remorse for his actions, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 5/1/2019 CHAIRPERSON Signed by: I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. 3-7a states an honorable discharge is a separation with honor: The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service. d. 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and affirmed sentence ordered duty executed. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a 1. relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.